Claim of Right

– in the Scottish Parliament on 26th January 2012.

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Photo of Elaine Smith Elaine Smith Labour

The next item of business is a debate on motion S4M-01822, in the name of Nicola Sturgeon, on the claim of right. I call Michael Russell to speak to and move the motion in the name of Nicola Sturgeon—no, I am sorry. I call Nicola Sturgeon to speak to and move the motion in her name.

Photo of Nicola Sturgeon Nicola Sturgeon Scottish National Party

Members will have to wait a little bit longer for the treat that will be Michael Russell’s contribution to the debate when he sums it up later on. I am looking forward to that.

It is a real pleasure for me to open an extremely significant debate for Parliament. The motion for the debate is deliberately very simple. It states:

“That the Parliament acknowledges the sovereign right of the Scottish people to determine the form of government best suited to their needs and declares and pledges that in all its actions and deliberations their interests shall be paramount.”

Photo of Hugh Henry Hugh Henry Labour

I presume that a typographical error has been made. Perhaps the cabinet secretary will help us by putting on the record the rest of the statement.

Photo of Nicola Sturgeon Nicola Sturgeon Scottish National Party

I would be more than happy to see that done during the course of the debate; in fact, I have the rest of the statement in front of me. I will leave it to Hugh Henry to read it out later. If it is all right with him, I will get on with saying what I want to say.

That one sentence is charged with historical resonance for members in the chamber and for everyone in Scotland. It reaffirms the ancient principle that, in Scotland, the people are sovereign. Monarchs and Parliaments are the servants of the people.

That fine principle has its origins in the declaration of Arbroath. It was refined by George Buchanan in the late 16th century, and restated in Scotland’s first claim of right in 1689. Three hundred years later, a new claim of right was proclaimed by the Scottish Constitutional Convention. That 1989 claim of right was signed by all Liberal Democrat members of Parliament—I see that we have only one with us in the chamber today—including the current Advocate General for Scotland, and all but two Labour MPs. Its wording is therefore repeated in today’s motion.

The founding principle of that claim of right is one to which all parties that have taken their place in the Scottish Parliament should be able to subscribe. There has never been a more important moment to recommit ourselves to the guiding principle of the claim of right: the Scottish people are sovereign.

Photo of Neil Findlay Neil Findlay Labour

I regularly sit at the back of the chamber and sometimes I cannot quite hear what is said at the front. Will the cabinet secretary clarify whether her party signed the 1989 claim of right? I did not quite catch it.

Photo of Nicola Sturgeon Nicola Sturgeon Scottish National Party

The Scottish National Party always supported the sentiments of the claim of right and was involved in the initial work to draft it. The reasons why the SNP was not in the Scottish Constitutional Convention are well documented, but it is history. It is rather childish to say, “You didnae sign it then so we’ll not sign it now.” We are signing up to the principle today; the question is, are Labour and the other parties?

There has never been a more important moment to recommit ourselves to that principle. In May last year, the SNP won a clear mandate to implement our commitment to hold a referendum on whether Scotland should become an independent country, and yesterday, we published a consultation paper that sets out how we intend to work towards that referendum. The paper makes it clear that we will consult widely on a number of key issues. Once we have heard the views of people throughout Scotland, including views from all the major political parties and representatives of civic Scotland, we will introduce proposals on which the Parliament will legislate. That is as it should be. The Government is using its mandate to consult the people of Scotland on its proposals. The people will have a material say in how we take forward the legislation for a referendum, and the Scottish Parliament will ultimately be accountable to the people of Scotland for the legislation that it passes.

As the First Minister said yesterday, the Scottish Government sees merit in the proposal that the United Kingdom Government pass legislation under section 30 of the Scotland Act 1998. Doing so would enable us to ask in the referendum the shorter, simpler question on independence that we set out yesterday. However, the UK Government’s proposal to attach conditions to such legislation is simply unacceptable. It potentially closes down options that should properly be explored and decided on by people in Scotland. In doing so, it would limit the sovereignty of the people of Scotland and ride roughshod over the claim of right.

Photo of Kezia Dugdale Kezia Dugdale Labour

Will the cabinet secretary outline what she finds unacceptable about the Electoral Commission?

Photo of Nicola Sturgeon Nicola Sturgeon Scottish National Party

I am sure that Kezia Dugdale was in the chamber yesterday when we made very clear our proposals to give the Electoral Commission the power of oversight over and regulation of the referendum. I urge all members to keep up with the debate.

Let me proceed to other things that I consider to be unacceptable. For example, whenever it has been able to do so, the Scottish Parliament has chosen to give the vote to 16 and 17-year-olds. Why should the Scottish Parliament be denied the right to extend the franchise for the referendum? Why should it be denied the right to give young people—who can register for the Army, get married and have children, and pay taxes—the right to have a say in a fundamentally important decision about the future of our country?

Whether the other parties that are represented in the chamber like it or not, there is a strong strand of opinion that the option of enhanced devolution should be placed before the people in the referendum. That is not my preferred outcome, but a body of opinion supports that approach. Why should the UK Government take the decision to exclude that viewpoint from the ballot paper?

I am happy to say that we will support the Labour amendment in good faith. I hope that it is not a back-door attempt by Labour to restrict the Scottish people’s options. Let us be clear: any referendum—single option or multi-option—should fulfil the requirements that are mentioned in Labour’s amendment, so we will support it.

It was made clear yesterday that if we are to properly consult, legislate and debate the big issues at stake, the autumn of 2014 is the right time for a referendum to be held. Again, it would be wrong for Westminster to seek to impose a timetable that simply suited its purposes.

It is right for the Scottish Parliament to be in the driving seat in all those areas, but the motion is not about the specifics of those issues. I accept that people can honourably hold different views on the number of questions on the ballot paper or the minimum age for voting, and we will hear those views during the consultation. The motion is far more fundamental than that: it is about where sovereignty lies. The authors of a claim of right for Scotland in 1988 argued against a situation in which the choice offered to the people of Scotland was

“the choice the powerful choose to offer us.”

The fact that Westminster is no longer so powerful that it can limit Scotland’s choice is partly due to the efforts of those who authored that document, but the principle remains. It is not for any politician or any political party in any Parliament—certainly not in the Westminster Parliament—to place constraints on the sovereignty of the Scottish people. That is the principle that we are debating today.

Today, we ask members of this Parliament affirm or reaffirm a principle that many of them, or their fellow party members, were proud to uphold previously. The consultation paper that we published yesterday leaves no room for doubt about this Parliament’s ability to oversee the referendum. It makes clear—I say this for the benefit of Kezia Dugdale, who missed the point yesterday—that the referendum will be overseen by the Electoral Commission.

Photo of Nicola Sturgeon Nicola Sturgeon Scottish National Party

I will make some progress just now.

The paper explains how the referendum ballot will comply with the recommendations of the Gould commission, which was established after the chaotic 2007 elections, which were overseen by Westminster. It also makes it clear that the legislation that establishes a referendum will be subject to the widest possible consultation and the most detailed scrutiny. There is no justification for Westminster to try to impose conditions on the way in which this Parliament implements its democratic mandate.

We often hear the argument made that the UK Government must have a say on the rules of a referendum on Scottish independence, but I offer the contrary view that a UK Government with only 12 Scottish MPs at Westminster has no mandate to overrule a Parliament elected by the people of Scotland. The Westminster Government should pass legislation that enables, not legislation that dictates.

So far—although we hope that this will change—the UK Government has shown little sign of respecting this Government’s mandate. We made it clear during and after the election that our immediate priority was to strengthen the Scotland Bill, and we have made a range of constructive suggestions on the Crown estate, borrowing powers and broadcasting, in which areas the further devolution of powers had either been endorsed by other parties in this Parliament or received widespread support. However, despite the strength of our mandate and our attempts at consensus, scarcely any changes have been made to the Scotland Bill. The UK Government that so freely ignores the wishes of this Parliament in those respects should not be a Westminster Government that seeks to dictate the terms of Scotland’s referendum.

However, the consultation process for the referendum provides us with the opportunity for a fresh start. The UK Government and all the parties represented in the chamber can unite, I hope, around the principle that, regardless of the outcome that we seek, we recognise that the people are sovereign, and that it is the people of Scotland who will choose Scotland’s future.

The declaration of Arbroath, which I referred to at the outset of my remarks, famously states that, if a Scots ruler was to act against the nation’s interests, the people would

“drive him out as ... a subverter of his own rights and ours”.

That basic principle of democracy, that fundamental principle of popular sovereignty, is far more true today. The best guarantee of the integrity of the referendum is the certain knowledge that the people of Scotland, using the ballot box, would be merciless in driving out anyone who tried to conduct it unfairly.

I said at the outset that the motion that we are debating this afternoon is charged with historical resonance for everyone in Scotland, and so it is. I am sure that we will hear more of the history of the claim of right as we listen to the debate.

Photo of Nicola Sturgeon Nicola Sturgeon Scottish National Party

I hear David McLetchie promising a history lesson. It will be history from the Tory perspective, so we will need to take it with a pinch of salt, but there we are.

Although the motion is historically resonant, it has huge contemporary relevance as well. It is the contemporary meaning of the claim of right that is most important today. Do we still believe in the fundamental right of the people not just to make choices but to determine the choices that are available to them? I doubt that the people of Scotland would have reservations about that and I hope that no member of this Parliament has any reservations either.

I move,

That the Parliament acknowledges the sovereign right of the Scottish people to determine the form of government best suited to their needs and declares and pledges that in all its actions and deliberations their interests shall be paramount.

Photo of Patricia Ferguson Patricia Ferguson Labour

For members of Scottish Labour, there is a slight feeling of déjà vu about the debate because we recall the production of the claim of right in 1989. In that year, we dedicated our party and ourselves to all the principles set out by the claim of right. The document was signed by all but one of our Scottish MPs; by leaders of church and faith groups; by the Scottish Trades Union Congress, the Liberal Democrats and the Green Party; and by representatives of civic Scotland.

The Labour Party was represented by our then chair, Johann Lamont. Almost all Scottish opinion was united on the issue of finding Scottish solutions to Scottish problems and in agreement over the need to work together.

Only two parties stood aside and refused to take part in the work of renewing our constitutional arrangements in a way that would advantage Scotland. To be exact and to be scrupulously fair, at that time the Tories were consistent: they opposed any change to the polity of the UK, which was at least a clear position if, in my view, a wholly mistaken one.

The other party that refused to support the claim of right or to work within the Scottish Constitutional Convention was the SNP—the very same party that is calling on us today to vote for a motion that is an extract of the 1989 claim of right.

I quote someone whose opinion we should all listen to:

“The manner in which the SNP decided not to participate was bungled. Over the course of a weekend, party members found out that they were suddenly opposed to something that they thought they were supposed to be enthusiastic about”.

That was Professor James Mitchell.

Photo of Michael Russell Michael Russell Scottish National Party

I do not want to interrupt the flow, except to say that I was there and that that was not what happened. It is important that members recognise that.

I want to get one thing clear. The SNP accepts that it did not sign the claim of right, but it did not sign it because the Constitutional Convention would not discuss independence. That is a fact. I was there and I took part in that discussion.

The issue now is whether we will all sign the claim of right today. From the Patricia Ferguson’s point of view, it is a matter of right or wrong; from our point of view, the claim of right would take people forward. Is that not a prize worth having?

Photo of Patricia Ferguson Patricia Ferguson Labour

Mr Russell’s version of events is known to him and perhaps to some of his colleagues. He may not wish to share it with the rest of us. I point out one simple and obvious fact: the Labour Party is already a signatory to the claim of right. We have no need to sign it again. We signed it in 1989 and, unlike others, we have never had reason to resile from it.

Ms Sturgeon and her party may think that the SNP’s unwillingness at the time to discuss the modernisation of Scotland’s constitutional arrangements has been forgotten but that hugely disappointing record has not been forgotten by members on this side of the chamber or by the people of Scotland. What we need now—more than 20 years later—is not a repetition of that frankly disappointing unwillingness to work with and discuss issues with others; we need the SNP to discuss these serious issues with Parliament and Scottish society so that the people of Scotland can have a clear choice regarding their country’s future.

The claim of right was not an end in itself; it was one step on the important journey towards devolution. What followed the claim of right was the tireless work of the Constitutional Convention, which discussed and debated to achieve the goal set out for it in the claim of right. Its proposals formed the basis for the referendum that followed and, of course, the act that secured this Parliament. When people voted in the 1997 referendum, they knew exactly what they were voting for.

Scottish Labour has consistently called for cross-party talks and for the involvement in discussions of representatives of Scottish society. We therefore welcome the First Minister’s announcement today about discussions, although we look forward to hearing more about the scope and extent of those discussions.

In opposition, Scottish Labour and its partners, all with differing views and principles, managed to build consensus around a plan for the Scottish Parliament that we have today. That required serious debate and compromise. A majority SNP Government can surely do no less, and today’s concession is a good first step.

Yesterday, the First Minister launched the referendum consultation in this Parliament and promptly left to brief invited press at Edinburgh castle. This is the fourth time that the Government has launched such a consultation, but at no time has it spelled out the effect of a vote for separation on the lives of Scotland’s people. In their letters and comments about the referendum, constituents have asked me what Scotland’s separation from the rest of the UK would mean for their pensions. They ask about the benefits system. They ask whether there will be an army and a navy. They ask what the cost will be. They ask about the effect on families living in other parts of the UK. They also ask why their children who live in England because there are no jobs for them in Scotland will not get a vote in the referendum.

Photo of John Mason John Mason Scottish National Party

Does the member accept that although some things, such as the policy of no nuclear weapons, are clear, other things will depend on the party that will be in government after independence? What will be the Labour Party’s plans after independence?

Photo of Patricia Ferguson Patricia Ferguson Labour

I might privately give Mr Gibson, who was heckling from a sedentary position, a list of all those SNP members who over the years have told me that if Scotland became independent they would be members of the Labour Party. He might find that interesting reading.

Photo of Patricia Ferguson Patricia Ferguson Labour

Ms Grahame should be able to spot them easily—they are the ones with very red faces.

Mr Mason has actually made my point for me, and I will come back to it in a moment.

I can give an answer to those of my constituents who have expressed concern about the fact that their children living south of the border will not have the vote, because the answer is set out in the constitutional referendum document that we received yesterday. As for the rest, I, like Mr Mason, have to say that I do not know, that no one knows and that not even the First Minister really knows because those discussions and negotiations have not yet begun. If Mr Mason is correct in his view that all that will depend on the Government that is elected after the passing of a separation bill, he might need to discuss the issue with Mr Russell.

We might have the SNP Government’s plans for a referendum, but we do not have any clear description of what a separate Scotland will look like.

Photo of Margo MacDonald Margo MacDonald Independent

Can we begin in a productive and constructive manner and clear something up from the start? I do not think that a single party or member in this Parliament would want to see anyone other than those resident in Scotland voting on the future of Scotland—the country to which they and their children are committed. It does not really matter whether they have a Pakistani or West Indian grandmother—if they live here, they vote.

Photo of Patricia Ferguson Patricia Ferguson Labour

All I can say to Ms MacDonald is that my constituents have asked me that question and, until yesterday, we did not know what the Government’s position was. Now we do and, as I have said, I will be able to relay that information to them. Whether or not they agree is, of course, another matter entirely.

Photo of Patricia Ferguson Patricia Ferguson Labour

If the SNP Government now acknowledges the claim of right, it must also realise that saying so is not enough. If the Scottish people are to exercise their

“sovereign right ... to determine the form of government best suited to their needs”,

they must have all the information they need to allow them to make that informed choice. We cannot ask people to break a 300-year-old union without telling them what the effect will be and giving them the opportunity to discuss and debate those matters.

As it stands, the Scottish people will at best be asked to vote on a proposal that is the SNP Government’s opening negotiating position.

The Deputy Presiding Officer:

You must close, please.

Photo of Patricia Ferguson Patricia Ferguson Labour

In closing, Presiding Officer, one thing that I am sure we can all agree on is that a vote for or against separation is an important one—probably the most important that any citizen of this country will cast. Every last citizen must be fully informed as to its effect.

The Deputy Presiding Officer:

Thank you, Ms Ferguson. I am closing you down now.

Amendment S4M-01822.1 moved:

“to insert at end, ‘and asserts the right of the Scottish people to make a clear, unambiguous and decisive choice on the future of Scotland.’”

Photo of David McLetchie David McLetchie Conservative

The Claim of Right Act 1689 was an assertion of the sovereignty of the old Scots Parliament and a declaration that King James VII had forfeited the throne because he had sought to change what it described as

“the fundamentall Constitution of this Kingdome ... from a legall limited monarchy to ane Arbitrary Despotick power”.

It also denounced King James VII as a “profest papist”, asserted the duty of the king to maintain the Protestant religion and disqualified any Catholic from being king or queen of the realm or from holding any other office. Therefore, although the original claim of right proclaimed the supremacy of the laws that were made by the old Scots Parliament, it hardly constitutes a clarion call for a liberal and tolerant society, and most decidedly did not assert the sovereignty of the people of Scotland—99 per cent of whom had no say whatever in determining the composition of that Parliament.

Notwithstanding its offensive prejudices, the 1689 act appears to have been the inspiration, 300 years later, for a new claim of right that was misguidedly signed by those who should have known better and whose judgment was blinded by their dislike of a Conservative Government.

The principal assertion of the new claim of right was the acknowledgement by the signatories of

“the sovereign right of the Scottish people to determine the form of Government best suited to their needs”.

Popular sovereignty in a legal sense is a difficult concept to define and describe in practical operation, since any power can be exercised in a society only through its institutions, which is to say through a Parliament that is elected by the people and a Government that is accountable to that Parliament. Whether the Westminster Parliament, which has been so elected, is subject to any legal constraints on its powers is a debateable issue, but there is no doubt that no court in Scotland or elsewhere in the United Kingdom has ever issued a judgment declaring that a law that was passed by the Westminster Parliament was ultra vires because it did not comply with the terms of the treaty of union.

So much for constitutional law. Let us now consider the matter in terms of practical politics and the assertion in the 1989 claim of right. I have no problem acknowledging that I and my fellow Scots have the right to seek a dissolution of the act of union and to establish Scotland as an independent state, nor do I have a problem with the proposition that that should be tested in a legal, fair and decisive referendum. On all that, we can agree. In any marriage, union or partnership, any one of the parties is entitled to seek a divorce or dissolution, on terms that are to be negotiated and agreed or, ultimately, adjudicated by a court. However, the assertion that one partner in a partnership can unilaterally change its terms without the agreement of the other partners is plainly wrong.

We cannot have it both ways. If we wish to be in the partnership of the United Kingdom and maintain the act of union, revised terms of that partnership must be agreed by all the partners and reflected in an act of the Westminster Parliament, which was established by that union of 1707.

Photo of Alasdair Allan Alasdair Allan Scottish National Party

I hate to drag David McLetchie kicking and screaming into the 18th century, but when he talks about unilaterally breaking up partnerships, he will be aware that nobody in the SNP has suggested a unilateral declaration of independence; instead, we have suggested a negotiated one that is conducted under principles of international law.

Photo of David McLetchie David McLetchie Conservative

If the member read the point of the debate and the claim of right, he would find that the assertion is unilateral, relative to the people of Scotland. I am saying that we cannot make unilateral assertions if we are in a partnership and that we can change a partnership only by agreement. I suggest that Dr Allan reads what he is supposed to be voting for.

Photo of David McLetchie David McLetchie Conservative

No, thank you.

As I said to Dr Allan, changing the rules is a matter of agreement, not assertion. Those who signed the 1989 claim of right either failed to understand that or deliberately chose to ignore it because it suited their political-posturing purpose to do so. At the time, it took the Labour MP Tam Dalyell to see through that nonsense in characteristically trenchant fashion. What he said then remains true today.

Any amendment to the powers of the Scottish Parliament requires the approval of the Westminster Parliament—Scotland’s other Parliament—which is the sovereign Parliament that is elected by the people of the whole of the United Kingdom. The very concept of devolution implies acknowledgement of that sovereignty and recognition that the elected representatives of all parts of the United Kingdom have a legitimate interest in the financial and non-financial powers that are granted to this Parliament—just as we in Scotland have a legitimate interest in the powers that are granted to the Assemblies in Wales and Northern Ireland and in the exercise of the powers that are reserved to the Westminster Parliament and Her Majesty’s Government. We exercise that interest through the election of Scottish members of that Parliament, whose mandate is every bit as legitimate as that of members who are elected to this Parliament.

The Deputy Presiding Officer:

The member is in his last minute.

Photo of David McLetchie David McLetchie Conservative

If people do not like the proposition that it is possible to change the rules of a partnership only with the agreement of all the partners, they should not be in a partnership at all. [Interruption.] No, no. Exactly—the SNP members are acknowledging my point. I find it astonishing that unionists and federalists both failed to appreciate that elementary point back in 1989, although it is well understood by nationalists. Members ought to be just a little more patient and I will get there.

The Deputy Presiding Officer:

You must close soon.

Photo of David McLetchie David McLetchie Conservative

Let us be clear. The people of Scotland have the right to declare their desire for independence and it is our duty as democrats and their representatives to respect that right, to facilitate its expression through a referendum and, if there were to be a yes vote, to implement it. However, the people of Scotland do not have the right unilaterally to dictate the terms of a union that requires the agreement of others. In that respect, the claim of right as drafted and debated today is totally misconceived, and its terms should be qualified.

The Deputy Presiding Officer:

I now need to limit everyone to six minutes in the open debate, because we have no time in hand. That will include interventions.

Photo of Christine Grahame Christine Grahame Scottish National Party

I have to agree with David McLetchie that power devolved is, indeed, power retained. We are talking about obtaining independence. As a divorce lawyer—as I was—he knows that when one party sees the end of the marriage, the marriage is at an end. The detail is then negotiated according to law and practice. The same would happen in the separation of two parts of the United Kingdom.

It is sometimes important to work back to why certain assertions are made—for example, in the claim of right, the assertion that the Scottish people are sovereign. Much slips into our everyday parlance that has a deep-rooted and substantive cultural constitutional genesis. For example, we hear Scots being reprimanded for saying “I seen it” or “I done it”. That is, in fact, grammatical language. Those phrases have survived through centuries of spoken Scots. They are not lazy or ignorant slang, but an echo from the past.

That takes me to the claim of right from 1989 and the words:

“We, gathered as the Scottish Constitutional Convention, do hereby acknowledge the sovereign right of the Scottish people to determine the form of Government best suited to their needs”.

That Constitutional Convention was proposed in a private members bill way back in 1980 by the SNP leader, Gordon Wilson. Where did that sovereign right come from? There is no written UK constitution, but there are fragments of an incomplete constitutional jigsaw, some of which predate the treaty of union. We have to go as far back as the declaration of Arbroath—a declaration of Scottish independence and of conditional monarchy. Talking of Robert the Bruce, it says:

“Yet if he should give up what he has begun, and agree to make us or our kingdom subject to the King of England or the English, we should exert ourselves at once to drive him out as our enemy and a subverter of his own rights and ours, and make some other man who was well able to defend us our King; for, as long as but a hundred of us remain alive, never will we on any conditions be brought under English rule.”

That shows that he was a king who was in office by leave of those who, at the time, represented the people. They were a narrow bunch—some 51 magnates and nobles—but, nevertheless, he was on parole.

The significance of those words, resonating through the centuries, is that the monarch’s power to rule was conditional on the will of the people of Scotland. That is reflected in the fact that Queen Elizabeth is Queen of Scots and not of Scotland. Therefore, sovereignty—now exercised in this democracy by various institutions—is exercised through the expressed will of the Scottish people.

That takes me to why Queen Elizabeth is designed Queen of England. If my recollection is accurate, Henry VIII of the Tudor dynasty, installing himself as the head of the church, embedded the divine right of kings to rule. Sovereignty—the embodiment of which was the monarch—was absolute. However, as power was removed from the Crown and transferred to the English Parliament through the centuries, so was sovereignty. Therefore, the English Parliament was, indeed, sovereign, but that does not overrule or supersede the conflicting principle of the sovereignty of the Scottish people.

Article III of the Union with Scotland Act 1706 says:

“That the United Kingdom ... be represented by one and the same Parliament to be stiled The Parliament of Great Britain.”

The significance of that is that that Parliament was not a continuation of the English Parliament or of the Scottish Parliament. Therefore, for Scotland, sovereignty remains as it always was—with the people.

I pray in aid the case of MacCormick v the Lord Advocate, from the 1953 session cases. At that time, postboxes with “E II R” on them had been blown up, because Elizabeth was the first Elizabeth of Scotland. In that case, the following remarks were made obiter:

“Considering that the Union legislation extinguished the Parliaments of Scotland and England and replaced them by a new Parliament, I have difficulty in seeing why it should have been supposed that the new Parliament of Great Britain must inherit all the peculiar characteristics of the English Parliament ... as if all that happened in 1707 was that Scottish representatives were admitted to the Parliament of England. That is not what was done ... The principle of the unlimited sovereignty of Parliament is a distinctively English principle which has no counterpart in Scottish constitutional law.”

So, why the potted constitutional history lesson? It is because it is significant to the legitimacy of the referendum, which will of course not be consultative, but will have legal and constitutional authority, as well as political authority.

In 1979 and 1997, there was no Scottish institution to provide a mechanism for asking the Scottish people a question on the constitution. In 1979, the UK Government took it upon itself to draw up a referendum. Of course, it produced the question and chose the date—1 March 1979, which was right in the middle of the winter of discontent, when snow was falling over Scotland. That was an omen, but the 40 per cent rule, which in effect counted the dead and those who did not exercise their franchise as having voted no, was the real treachery. That was compounded by Sir Alec Douglas-Home broadcasting on the eve of the poll that we should vote no for a better deal. Plus ça change, plus c’est la même chose.

Now we have our own mechanism in the Scottish Parliament, but we do not need to have a Parliament. Even if the Parliament did not exist, if the Scottish people streamed out on to the streets of our towns, cities and villages to say with a clear voice on megaphones, on marches and online that they wanted an independent Scotland again, that would be a declaration of independence. No challenge from the Palace of Westminster, the corridors of the United Nations, this place or any courts could gainsay that. The Scottish people would say that they done it, and they done it their way.

The Deputy Presiding Officer:

Thank you very much for finishing on time.

Photo of Malcolm Chisholm Malcolm Chisholm Labour

I and everybody in Labour fully support the

“right of the Scottish people to determine the form of Government best suited to their needs”.

We have supported that for a long time. I know that the cabinet secretary will think that this is a trivial point, but she must understand how galling we found it when the First Minister asked us a few weeks ago to reaffirm a commitment that he had never affirmed in the first place. Setting that aside, I say for the avoidance of doubt that we reaffirm that commitment.

At the heart of the debate is a gigantic step by the Scottish Government from that commitment to saying that the Scottish Government should determine all the processes of a referendum. In a way, we really need to focus on that.

Among the many interesting articles on the subject in the past week or two, the most interesting that I have found was by the former leader of the Liberal Party of Canada—members can find it in the Financial Times of 18 January. He started the article with the stark statement that

“how the rules” in a referendum

“get made will determine who wins.”

That might be a slight overstatement, but it makes us realise how important the process is.

He also said:

“For the Scottish referendum result to have legitimacy, both nationally and internationally, both sides will have to compromise and agree on language, timing and process.”

In the context of what we are talking about, perhaps we should refer to “all sides” rather than “both sides”. We are talking not about Edinburgh and London but about all sides of Scottish opinion. I probably agree with much that the Scottish Government said in the two days before Michael Moore’s statement in the House of Commons, because the UK Government’s approach before that statement was incredibly cack-handed, although Michael Moore made a much better shot of it in his statement. We are talking not about Edinburgh and London, but about how we ensure that all sides of Scottish opinion have a say in this vital decision on the referendum process.

As Patricia Ferguson did, I welcome the commitment that the First Minister made during questions today. We will have to see how that works out. However, it is really important that the quotation from Michael Ignatieff that I read out be taken on board. We must have a process that is acceptable to all sides: we cannot have someone saying at the end of it all that the referendum was not fair or not clear and so on. That is why the Labour amendment—in which the words “clear”, “unambiguous” and “decisive” are central to our argument—is so important.

I will home in on what is perhaps the most contentious area of all with regard to process: whether there should be one or two questions. I expressed a view on that matter a few months ago, but I have thought about it a great deal in the past three or four months, and I have come to the conclusion that it will be very difficult, if not impossible, to have a multi-option referendum on the issue. That does not mean that I go back in any way on what I have written about the need for this Parliament to have greatly increased powers, but I see two fundamental problems with a multi-option referendum.

First, we do not have a clear third option. I know that the Scottish Government has in its head a clear third option, and I was rather concerned to read on page 15 of the document yesterday that the Scottish Government’s position remains that it is

“willing to include a question about further ... devolution on the lines of ‘devolution max’”.

In other words, the Scottish Government is prejudging and deciding what the third option should be. However, the third option of the Scottish people may well fall far short of devolution max in its pure and absolute sense.

Photo of Jamie Hepburn Jamie Hepburn Scottish National Party

I thank Malcolm Chisholm for giving way; he is one of the Labour members whom I respect more on this subject and many other subjects. However, I am a little disappointed to hear him backing away from the idea of a multi-option referendum.

Let us be clear: the claim of right asserts

“the sovereign right of the Scottish people to determine the form of government best suited to their needs”.

Why would Malcolm Chisholm seek to narrow that option? Surely it would allow

“the Scottish people to determine the form of Government that is best suited to their needs”.

Photo of Malcolm Chisholm Malcolm Chisholm Labour

I am describing the practical difficulties; the first difficulty is that we do not have a third option worked out in detail.

Photo of Malcolm Chisholm Malcolm Chisholm Labour

I will give way in a minute, but I know that I will be cut short. I will just make my points and then I will give way.

The second point concerns the practicalities. Peter Kellner has written very interestingly about a second question: he comes up with four different voting methods that get four different results. Willie Rennie has expressed the dilemma in terms of what happens if we get 80 per cent for devo max and 51 per cent for independence. The public would not accept that independence had won that poll.

I will let Nicola Sturgeon intervene after I have made this point. I saw her tweeting this morning—I do not know whether she said this last night, because I did not see the programme—that her favoured option is to ask the people whether they want a change from the status quo and then to ask a question that offers a choice between independence and devo max. The problem with that is that many of the people who do not want a change—and who would answer the first question to that effect—would abstain on the second question. We could therefore get 50 per cent voting for independence on the second question, but it may well be that 40 per cent or less of those taking part in the referendum actually voted on that question.

I give way to Nicola Sturgeon.

The Deputy Presiding Officer:

Very briefly, please, Ms Sturgeon.

Photo of Nicola Sturgeon Nicola Sturgeon Scottish National Party

Just to clarify, I was not tweeting from the chamber last night—

Photo of Michael Russell Michael Russell Scottish National Party

On a point of order, Presiding Officer. Perhaps you would ask Mr Henry to withdraw that remark. That was not what was taking place.

The Deputy Presiding Officer:

That is not a point of order. Ms Sturgeon, please continue.

Photo of Hugh Henry Hugh Henry Labour

Can I reply to that, Presiding Officer? Mike Russell was using an electronic device, which is not allowed under the rules of this Parliament.

The Deputy Presiding Officer:

That is not a point of order. Ms Sturgeon, please continue.

Photo of Nicola Sturgeon Nicola Sturgeon Scottish National Party

I was going to say, as Jamie Hepburn did, that Malcolm Chisholm is one of the Labour members whom I listen to. On the evidence of what we have just heard, he will be one of the very few Labour members whom I listen to.

My question is a serious question. Is Labour not abdicating its responsibility? Labour says that it does not support independence, and it is entitled to that view, but it does not think that the Scottish Government should define the devolution option. Should not Labour bring forward that option to allow the Scottish people to have their say on it?

The Deputy Presiding Officer:

I regret that Malcolm Chisholm is much over time.

Photo of Malcolm Chisholm Malcolm Chisholm Labour

I am certainly interested in developing such an option. The point that I am making today is that such an option cannot be on that ballot paper. We must have a clear, decisive and unambiguous question on independence.

Photo of Gil Paterson Gil Paterson Scottish National Party

Life is full of contradictions and ironies. The first Scottish claim of right was the declaration of Arbroath in 1320, which was signed not by the people, but on their behalf. That document was the basis of the American declaration of independence.

Things have moved on, but the principles of the declaration live on. In all democracies it is accepted that the rights of the people rest with the people and not with a few unelected lords.

The claim of right in the 1980s arose from the hopelessness in Scotland that was the result of the ineffectiveness of our elected representatives in preventing the ravages of Margaret Thatcher’s Tory Government as it dismantled Scotland’s industrial base.

It is good to put on record what we believe, whether we are talking about the declaration of Arbroath in 1320 or the claim or right in 1989, but it seems from Lord Wallace’s recent actions that he did not believe what he signed. Is it not ironic that one Wallace went to London and was hung, drawn and quartered because he believed in the principle of a claim of right, but another Wallace goes to London and threatens Scotland and its people with the law if we try to implement the principles of the claim of right that he signed? The first Wallace had the full backing of the Scottish people; the second Wallace has the backing of the London establishment, which appointed him to the Lords with no democratic accountability to the Scottish people. London is certainly full of contradictions and ironies.

When the people of Libya expressed their claim of right in the Arab spring rising, London went to war with the Gaddafi regime to enforce their demands, with David Cameron leading the charge. More recently, the London Government declared its utmost support for the right of the people of the Falkland Islands—and those people alone—to decide their future. Sovereignty lies with a handful of people in those islands, but when it comes to Scotland, which is allegedly an equal partner in the United Kingdom, London has a very different stance. We, the people of Scotland, have no rights of our own; we have only those rights that the London Government grants us. The prevailing belief in London is that it should have a say on the question that is asked and on when the vote is taken.

During the 1980s it was widely acknowledged that there was a democratic deficit. The Tory Government that was in power had little support in Scotland and the feeble 50 Labour members of Parliament were powerless to oppose the Government—indeed, they endorsed its right to rule through their continued support for the union. Today, a Tory-Lib Dem Government that has little support in Scotland is given legitimacy to govern us by the unionist Labour Party.

The continuing democratic deficit is illustrated by the presence on Scottish soil of the biggest arsenal of nuclear weapons in Europe. What is London going to do with Scottish weapons of mass destruction that we want nothing to do with? It says that it will charge us for the privilege of disposal and clean-up. We really could not make it up, could we?

I am disappointed that the unionists in the Scottish Parliament—there are plenty of them—who so often declare that they are proud to be Scots and British at the same time, have been prepared to sit quietly through the outrageous attacks of the past couple of weeks. I am not asking them to give up their belief in the union and I am not asking them not to argue forcefully for the union, but I expect the legitimate claim of right of all Scottish people, whether they are for or against the union, to be treated with much more respect. Much more important to me even than independence is the freedom of our people to decide their future without outside interference.

Photo of James Kelly James Kelly Labour

The member talked about respect. Does he think that the First Minister was respecting the Parliament when he announced his intended season for the referendum to Sky News rather than to the Parliament?

Photo of Gil Paterson Gil Paterson Scottish National Party

I am not even going to answer that. I will sit back down and the member can come back in with something meaningful.

The Deputy Presiding Officer:

You are in your final minute.

Photo of Gil Paterson Gil Paterson Scottish National Party

I am proud of the principles in the declaration of Arbroath. I commend the motion, which has my full support, to the Parliament.

Photo of Linda Fabiani Linda Fabiani Scottish National Party

I feel that this debate is a logical extension of the recent debate that we had on the future of Scotland, which focused on legalities. I am pleased that today we can further address the issue of legitimacy.

Surveys have demonstrated that it is, in fact, the belief of Scotland that the Scottish Parliament and not Westminster should speak for Scotland. I feel that we are doing that by taking forward debate on the extension of the Parliament’s powers towards independence. We have heard Opposition members talk here today and in the media about the need to consult civic Scotland. As the Scottish Government’s consultation paper shows, we all agree about that. However, we acknowledge today, as we did in 1989, that parties that are represented in the chamber consulted civic Scotland and the Scottish people. They attracted sufficient support to press successfully for the re-establishment of a Scottish Parliament. They did that not just by pressing a political case but by pressing the constitutional principle that sovereignty rests with the Scottish people.

It seems, in that case, that we are all agreed on where sovereignty does, in fact, rest:

“The ultimate sovereignty of the Scottish and Welsh peoples is a fact. Whatever the niceties of international law, Scotland and Wales can claim the right of self-determination if that is what they want”.—[Official Report, House of Commons, 22 May 1997; Vol 294, c 872.]

That was said by a Conservative, Bernard Jenkin. Then there is this:

“I believe that sovereignty lies with the people of Scotland rather than with any Parliament. That is a view established in the claim of right 1989.”—[Official Report, House of Lords, 3 July 1996; Vol 573, c 1514.]

That was said by the Lib Dem peer, the Earl of Mar and Kellie, in a House of Lords debate. Indeed, our late First Minister, Donald Dewar, said in 1997:

“If they want to go for independence, I see no reason why they should not do so. In fact, if they want to, they should. I should be the first to accept that.”—[Official Report, House of Commons, 21 May 1997; Vol 294, c 725.]

That seems to me to be unequivocal. So, why then do the UK anti-independence parties, even in this Parliament in Scotland’s capital city of Edinburgh, continue to deny the Scots the right to that self-determination and to determine the form that it should take?

In the 1970s, there was the wheeling and dealing that stymied the 1979 devolution referendum, which was of course a response to the SNP’s 1974 election result. The process leading to the 1989 claim of right and constitutional convention is well known and documented; it was of course supported by Labour and it followed the SNP by-election win in Govan in 1988.

Since the establishment of our Parliament here in 1999, the constitutional question has been raised many times by the anti-independence parties. We have had the Calman commission in response to an SNP minority Government that was elected in 2007. We have had a Scotland Bill that was introduced by the Labour UK Government and a Scotland Bill that was introduced by the current coalition Government. Incidentally, as convener of the Scotland Bill Committee, I am concerned that we have not had a substantive response to our report on the bill, given that it goes into the Lords this week for potential amendment.

All those things were introduced against a backdrop of certainty that Scotland’s legitimately and democratically elected SNP Government has always been clear in its belief in independence for Scotland, and that it stood on a manifesto commitment to hold an independence referendum. One could almost suspect that all the anti-independence machinations are about no more than spiking the SNP. After all, despite the Calman commission, two Westminster-instigated Scotland Bills and discussion that was supposedly about additional powers for Scotland, Labour and the Lib Dems seem to be intent on denying civic Scotland and the people of Scotland the right to discuss and determine the future of the nation.

I understand the Conservatives because they are at least consistent in their unionist viewpoint. As I said earlier, Labour and the Lib Dems pressed the constitutional principle that sovereignty rests with the Scottish people. Now, however, it seems that Westminster says different. My view is that it is time for all to choose what side of the constitutional question they are on. The Advocate General for Scotland, who is a Lib Dem, now tells us that the Scottish Parliament has no power to question the devolution settlement. He tells us that the union in its entirety is a reserved matter and beyond the powers of this Parliament to consider. That man was a leading member of the Calman commission—the Commission on Scottish Devolution—which was funded by this Parliament. It seems to me that there is a bit of a contradiction there.

Photo of Willie Rennie Willie Rennie Liberal Democrat

I hear what the members says, although I am afraid that I do not agree with much of it. She asserts that my good friend Lord Wallace is not trying to help this Parliament to deliver on its mandate. It is exasperating that she does not recognise that he is trying to assist.

The Deputy Presiding Officer:

You have 50 seconds left, Ms Fabiani.

Photo of Linda Fabiani Linda Fabiani Scottish National Party

I am terribly sorry to have upset Mr Rennie by speaking ill of his friend, but looking at the machinations of the Lib Dems over the piece, I suggest that, given that their party is supposedly a party of federalism and home rule and is, supposedly, on the side of people in civic Scotland who want to have their voices heard, they look to themselves rather than to stopping the SNP. I suggest, too, that Mr Rennie get on to his colleagues in the Scotland Office to ask why they wasted money on the Calman commission, which was set up to look at more powers for Scotland, and why they have wasted money on a Scotland Bill, on which they do not even have the courtesy to respond to a committee of this Parliament, before he tries to do down Scotland and the SNP.

Photo of Neil Findlay Neil Findlay Labour

When I consider the motion before us, words almost fail me, because the motion that the SNP has lodged and the political knockabout surrounding it are historical revisionism at its very worst.

At the SNP conference, the First Minister said:

“The SNP Government has confirmed the Claim of Right will be taken to Holyrood to allow parties to ‘rededicate’ themselves to its sentiments about Scottish sovereignty.”

I do not know about you, Presiding Officer, but I am a wee bit confused, as the dictionary definition of the word “dedicate” is:

“To commit (oneself) to a particular course of thought or action.”

Therefore, for someone to rededicate themselves or their party to something, they must have dedicated themselves to it in the first place.

Photo of Jamie Hepburn Jamie Hepburn Scottish National Party

Mr Findlay would do well to remember that he is not in the classroom now, so he does not need to give us definitions of words from the dictionary. I am interested in his definition of the Labour Party’s previous position on the claim of right. If it had such faith in the people of Scotland to assert their claim of right, why did it rule out a constitutional option—independence—at the time?

Photo of Neil Findlay Neil Findlay Labour

Mr Hepburn will just have to wait, because I will come on to those matters.

There would be no problem with my friend and colleague Johann Lamont carrying out the act of rededication because, as chair of the Scottish Labour Party in 1988-89, she signed the claim of right on behalf of the Scottish Labour Party, which, of course, was the party that went on to deliver devolution for Scotland, Wales and Northern Ireland. The fact that the SNP did not begs the question—

Photo of Chic Brodie Chic Brodie Scottish National Party

I understand that, at that time, the Scottish Labour Party was a component of the overall Labour Party. Would the member care to comment on the statement by the erstwhile Labour Prime Minister, Tony Blair, who, in refusing to endorse the claim of right, said:

“Sovereignty remains with me as an English MP and that is the way it will stay”?

Photo of Neil Findlay Neil Findlay Labour

I am willing to listen to Mr Brodie on the issue because, given that he was a Liberal Democrat at the time, his party leader would have signed the claim of right for him. At least the member is consistent in that regard.

It is not possible for a party to rededicate itself to something that it did not sign in the first place.

From the early days of its formation and the time of James Keir Hardie right up until when Donald Dewar became First Minister and, indeed, to this day, the Labour Party has always been the party of devolution. Labour supported the Constitutional Convention, delivered this Parliament with the backing of civic Scotland and the support of the Scottish people, and sought to strengthen it through the Calman commission. Labour will engage fully in any debate on further powers. Our approach, unlike the historical sulking, spoiled-brat attitude of the nationalists, has remained consistent over a long period of time, as has our mission of social justice.

Photo of Neil Findlay Neil Findlay Labour

No, thank you—I do not have time.

The SNP is all things to all people. On one hand, SNP members speak as social democrats—indeed, only two nights ago, Mr Salmond proclaimed that Scotland could become a beacon of social progress—but, on the other, they have a leader who wants to slash corporation tax, who wants Scotland to have a low tax base and a light-touch, deregulated economy and who, infamously, enthused about Thatcher’s economic policies.

Let us not take any lectures from the most cynical opportunists in the chamber. When Labour, the Liberal Democrats, the Scottish Trades Union Congress and numerous individual trade unions, businesses, civic Scotland, charitable organisations and churches were signing up to the claim of right, the SNP was sitting outside, holding hands with those well-known progressives, Michael Forsyth, Malcolm Rifkind, Bill Walker and the late Sir Nicholas Fairbairn. At this time of year, the phrase “a parcel of rogues” springs to mind.

The people who dedicated themselves to the claim of right and went on to vote for the Scottish Parliament did so because they wanted protection from the dark forces of conservatism should the Conservative Party ever be returned to power. They wanted a bulwark against the inevitable attacks that they would experience under a Tory Government.

In David Torrance’s book, the First Minister himself is quoted as saying, prior to the establishment of this Parliament:

“If we had a Scottish assembly operating in Scotland today, even the type proposed by Labour the political situation would be a great deal brighter ... the institution of a Scottish Parliament could have provided the bulwark Scotland needs against Tory economic policies”.

Well, here we are again, under attack from the Conservatives. Is this Parliament acting as a bulwark? Is it standing up for Scotland on the real issues? In many instances, the SNP Government is accepting and replicating the cuts and is using them as part of its strategy for independence. The Parliament could be acting as a bulwark. It could be arguing for an alternative, but it is not.

Photo of Neil Findlay Neil Findlay Labour

No, I have no time.

This morning, Labour held debates on the vital issues of kinship care and bus services. However, the Parliament is often rightly criticised for being irrelevant to the lives of ordinary people and, this afternoon, I whole-heartedly agree with that criticism. While people in Scotland lose their jobs at a rate of 200 a day, college students fear for their ability to secure a course or a bursary, supply teaching is in crisis, nursing numbers are cut, child poverty is spiralling and the social housing budget is cut by a third, what are we discussing? Whether or not to reaffirm something that the governing party did not sign up to in the first place.

I want us to move on to serious debate about serious issues. That is what we are paid to do in the Parliament. Let us get back to that and stop this opportunistic nonsense.

Photo of Jamie Hepburn Jamie Hepburn Scottish National Party

I remind Neil Findlay, in relation to the legacy of Margaret Thatcher, that it was Gordon Brown, not Alex Salmond, who had Mrs T round for tea. He would do well to remember that.

The text of today’s motion should be agreed across the entire chamber, so I will address my comments to David McLetchie in the hope that I can persuade him of the merits of supporting the motion. It might be best if he recognises that we are not actually debating the Claim of Right Act 1689; we are talking about the here and now and about Scotland’s future.

It is well seen that Mr McLetchie is a lawyer rather than a historian. His suggestion that the Westminster Parliament was established by the act of union of 1707 is a fallacy. As a lawyer, Mr McLetchie should accept that it was recognised in MacCormick v the Lord Advocate in 1953 that, in fact, Westminster was the English Parliament continuing. However, history lessons aside, who apart from David McLetchie can disagree with the assertion that we acknowledge

“the sovereign right of the Scottish people to determine the form of Government best suited to their needs”?

With the greatest of respect to Mr Findlay, I say that that is why today’s debate is relevant to the circumstances of this time. We need the form of government that is best suited to the Scottish people’s needs if we are to deal with the challenges that he set out.

In its essence, the claim of right is a statement of our faith in the values and principles of self-determination. When we have an Advocate General who acts more like a governor general, it is important that we assert those values clearly.

Let me deal with some of the myths around the claim of right and the suggestion that the SNP does not back its principles. Actually, the SNP was involved at the beginning of the process. The Scottish Constitutional Convention was proposed in a private member’s bill way back in March 1980 by the then SNP leader, Gordon Wilson, in the House of Commons. Unfortunately, the proposal was overwhelming rejected. Only one Labour MP voted for it: George Foulkes. I have to express my surprise at that—I never thought that I would be praising Lord Foulkes in this chamber.

The constitutional steering committee that was set up by the campaign for a Scottish assembly to produce the blueprint for the claim of right contained three SNP members: Isobel Lindsay, Professor Neil MacCormick and Paul Henderson Scott.

On the signing of the claim of right, I return to a point that I tried to make in an intervention. Despite asserting the sovereign right of the Scottish people to determine the form of government best suited to their needs, those controlling the convention at the time denied the sovereign right of the people to choose independence as an option—they limited their choices at the time. There were strings attached and there was a denigration of the assertion of

“the sovereign right of the Scottish people to determine the form of Government best suited to their needs”.

Some members would do well to remember and reflect on that.

As Linda Fabiani correctly pointed out, it is only when the SNP does well that the Labour Party is suddenly interested in constitutional change. The Kilbrandon commission came about only after the Hamilton by-election of 1967. The 1979 devolution referendum came only after the great 1974 result for the SNP, and even that referendum was stymied by Labour and Tory connivance. Labour joined the Constitutional Convention only after the Govan by-election in 1988. A much more contemporary example is that Labour went into the 2007 election committed to no more powers for the Scottish Parliament but then established the Calman commission—surprise, surprise—after an SNP victory.

Photo of Neil Findlay Neil Findlay Labour

Jamie Hepburn’s theory was going along fine, but what about 1997? Labour did exceptionally well and we introduced devolution after that election. Mr Hepburn’s theory falls to pieces.

Photo of Jamie Hepburn Jamie Hepburn Scottish National Party

Labour joined the Constitutional Convention only after the Govan by-election in 1988—proof that the SNP is and always will be the oil in the engine of constitutional change.

Let me deal with the tiresome talk of separatism. When we debated Scotland’s future just a couple of weeks ago, I said that I hoped that we would see an end to such ridiculous terminology. I believe that it is Scotland’s lack of independence that keeps us separate and keeps us from interacting with the rest of the world. Patricia Ferguson used the terminology a few times—I think that we know why—and she would do well to reflect on the fact that SNP members are no more separatists for wanting Scotland to be an independent state than the anti-independence parties are separatists for backing the UK as an independent state. They should reflect on that fact, and let us have no more talk of separatism.

Some members have, understandably, cited the declaration of Arbroath as a forerunner of the claim of right and as helping to inspire it. I close by referring to another statement of some years ago. It is not of the vintage of the declaration of Arbroath, but it is an important statement of self-determination. I refer to the words of Charles Stewart Parnell:

“No man has a right to fix the boundary of ... a nation; no man has a right to say to his country—thus far shalt thou go and no further.”

That is as clear a synopsis of Scotland’s claim of right as we will ever hear. No person either in or furth of Scotland has a right to say that Scotland’s journey ended with the devolution referendum of 1997 or the flawed Scotland Bill. No one has the right to say to Scotland, “Thus far shalt thou go and no further.” The Government is asserting Scotland’s claim of right, and it is a journey that I hope and believe will result in our independence.

Photo of Willie Rennie Willie Rennie Liberal Democrat

We will support the motion and amendment. As many members have said, the claim of right was signed by members of my party and the Labour Party and by others from across Scottish society. It was a significant event in the pre-devolution era. It stressed the right of the Scottish people to self-determination, which should not be thwarted by any Government or party. It led to the Constitutional Convention and, subsequently, the referendum and the Scottish Parliament. It was a broad principle that asserted the right of people over Parliaments, not the other way round. It is something that Liberal Democrats have in their soul for all time. In fact, the preamble to our constitution reads:

“We believe that sovereignty rests with the people and that authority in a democracy derives from the people.”

David McLetchie has shaken my belief in this but, as a principle, it is accepted across the mainstream of politics that people have authority over Governments and not the other way round. I am surprised, therefore, that it has taken the SNP more than 30 years to support the claim of right. I cannot see anything in it—even the original version, as opposed to the trimmed-down version—to which the SNP should be opposed. Its stated aim is:

“To agree a scheme for an Assembly or Parliament for Scotland”.

It does not add “within the UK”.

Photo of Michael Russell Michael Russell Scottish National Party

As somebody who was there—my memory is still basically intact—I am happy to repeat what I said to Patricia Ferguson at the start of the debate. The refusal of the members of the convention, including the Liberals, to allow independence to be placed as a realistic option in those discussions was absolute and meant that the SNP could not join. We have learned from that and our proposals for Scotland are inclusive. I hope that Mr Rennie will learn and realise that it is nonsensical to assert that the Scottish National Party is not interested in Scottish sovereignty.

Photo of Willie Rennie Willie Rennie Liberal Democrat

I always listen to the education minister, as he has such wise words, but there is nothing in the claim of right that he could have opposed. I understand that he had objections to the Constitutional Convention at the time, but there is nothing in the claim of right that the SNP could not have signed up to.

Photo of Tricia Marwick Tricia Marwick None

I remind members that time is really tight.

Photo of Michael Russell Michael Russell Scottish National Party

The opening words are “In the Constitutional Convention”, so the claim of right declares that those who have signed it are in the Constitutional Convention. We were not in the convention, for the reason that I have given.

Photo of Willie Rennie Willie Rennie Liberal Democrat

I am afraid that the SNP is always looking for the option to say no. I thought that it was the positive party, but clearly not so much.

I would not be so cynical as to suggest that the SNP is supporting the right of the Scottish people to have sovereignty over their own affairs only because it is suddenly in government here in Scotland, but that issue comes to the crux of the debate. Malcolm Chisholm was right: it is a mistake to conflate sovereignty of the people with the right of only this Parliament and only the SNP to determine the future of Scotland. That is a subtlety in the motion and the assertions made by SNP members—that only they have the right to ask the people and to ensure that the people’s sovereignty is protected. In fact, politicians of all parties, no matter whether they are in Westminster or here, have to be guardians of that sovereignty. It is not the responsibility of just the SNP; it is the responsibility of everybody.

That is why it is a positive step for the UK Government, in a constructive mode, to offer support to help the SNP deliver on its mandate. We recognise the mandate that it secured, but that does not mean that it has the right to do anything it wants to rig the referendum. That is critical.

That was perhaps a note of discord, but I am pleased to see that some consensus is developing. There is movement in the right direction on the Electoral Commission, and people think that it is reasonable that the franchise on which members were elected to this place should be the franchise for the referendum. Furthermore, as Malcolm Chisholm alluded to, academics from across the board now recognise that it is impossible to have a multi-option referendum. We would end up with the odd 99/51 situation—with the 51 per cent beating the 99 per cent. That is just not possible.

Most people now recognise that there has to be a straightforward yes/no question, with the current franchise and input from the Electoral Commission. Once that is agreed, we can get on to debate the substance.

As Liberal Democrats, we support home rule for Scotland so that we can determine our own destiny on the domestic agenda in Scotland while sharing risks and opportunities throughout the UK. When times are tough, we stick together; when times are good, we can share around the wins. To me, that is the benefit of the United Kingdom. We get the best of both worlds.

We have a strong track record on the issue. Over time, we have delivered with Labour and others the Scottish Parliament and now the Scotland Bill which, despite what Linda Fabiani says, provides a substantial transfer of power to the Scottish Parliament. We will continue to do that. With Ming Campbell’s commission, we will look to deliver as soon as we can, building consensus with others across society as we have done before.

That approach respects the will of the Scottish people. If we were not to respect the will of the Scottish people, we would be making a mistake. That is something that we are determined not to do.

Photo of Chic Brodie Chic Brodie Scottish National Party

I will quickly lay aside the puerile comments of Neil Findlay. There is the story that, when I was 18, I thought my father was an idiot and, by the time I was 21, I was surprised by how much he had learned. Perhaps Mr Findlay might want to consider that.

Presiding Officer,

When in the Course of human Events, it becomes necessary for one People to dissolve the Political Bands which have connected them with another, and to assume among the Powers of the Earth, the separate and equal Station to which the Laws of Nature and of Nature's God entitle them, a decent Respect to the Opinions of Mankind requires that they should declare the causes which impel them to” independence, and

“That to secure these Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed.”

Those are the first words of the declaration of independence of the first 13 United States of America on their secession from England. Ms Ferguson wonders what will happen after independence, so I point out that independence has not turned out too badly for the United States of America or the 50 countries that have seceded from England in the past 30 years.

The declaration of independence goes on to confirm the sovereignty of the people and their right to alter or abolish any form of government that becomes destructive of that sovereignty. So it is that today’s motion is a clear recognition of Parliament’s acceptance and acknowledgement that it is the sovereign right of only the Scottish people to agree the form and type, and to determine the conditions of government that are best suited to its need. Those conditions will be affirmed by the people and the people will choose.

That was enshrined as intended, but restricted, in the 1989 claim of right. It was committed and summarised by Canon Kenyon Wright at the Constitutional Convention in 1989, when he said:

“What if that other voice we all know so well responds by saying, ‘We say no, and we are the state’,? Well we say yes - and we are the people.”

That conditional 1989 claim of right was signed by 58 of Scotland’s 72 MPs, seven of Scotland’s members of the European Parliament, 59 out of 65 Scottish councils, and large swathes of civic Scotland. I say to Mr Findlay that, this time, the motion is a pledge that the interests of those in Scotland are paramount, but it is no call for dogmatism, isolationism or any conditionality that restricted the 1989 claim of right. It does not demand an outpouring of wailing that it is anti-this or anti-that.

The motion demands much more than the restricted 1989 claim of right did. It is a reaffirmation of the fundamental right of the Scottish people and people in Scotland to determine their constitutional needs and future requirements for the Government that they seek. In the 1980s, people such as Johann Lamont, Gordon Brown and Charles Kennedy were right to be proud of signing the claim of right, even if it was restricted. I hope that they will also now sign the new claim of right.

Let them and us all adopt and accept without condition the sovereign right of the people to determine whatever form of government they want. It is not about what we want. There should be no preconditions and no lines in the sand. It is our role, obligation and duty to fulfil the ambitions of the Scottish people without fear or favour.

We have a maturing Parliament and it is now time to show that maturity by laying aside anachronistic tribalism, and by eschewing narrow parochial advantage that brings no advantage to those whom we seek to represent and brings only short-term benefit to us as politicians. This is no time for political cup ties with one team against the other. This is the match that the crowd must win.

I return to where I began my speech—the declaration of independence of the first 13 United States of America, which says:

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness ... that whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it”.

I support the motion.

Photo of Mary Fee Mary Fee Labour

I am glad to take part in the debate as a proud and patriotic Scot. I find it hypocritical and suspicious that the First Minister and his party have brought the claim of right to the very chamber that he refused to work towards through the Scottish Constitutional Convention. When Alex Salmond was a member of the Westminster Parliament in 1989, he refused to sign the claim of right, which delivered devolution to the Scottish people, resulting in the very building that we are in today.

Why wait for five years since he became First Minister to raise the issue again? That is why I doubt the SNP’s intentions in reigniting the issue today. At a time when the biggest issue in Scotland is our future in the union, the SNP is looking backwards and talking about how to govern instead of putting words into action. At a time when unemployment is soaring, child poverty is at a dangerously unacceptable level and the economy is faltering, we have a Government that cares about its own goal of separation.

Photo of Mary Fee Mary Fee Labour

No. I have many points to make, and I do not have enough time to give way.

We have a nationalist Government that is masquerading as progressive. Nationalism is a regressive ideology, and it must be exposed as that.

The purpose of the motion is to stir up the debate on how the people of Scotland use their sovereign right to determine what Government should be formed to meet their needs. That is what happened last May. The SNP won that debate and must meet the needs of the Scottish people, as the claim of right requests of it. It already has the powers to create jobs, improve our economy and rid Scotland of child poverty.

Photo of Mary Fee Mary Fee Labour

No. I do not have time to do so.

Why is the SNP’s attention elsewhere? Where is the leadership on the issues that matter to everyone in Scotland?

Since the election in May, all parties have talked about how we need to include civic Scotland in the consultation for the referendum but, in 1988, the SNP walked away from the opportunity to listen to civic Scotland. How can we trust that party not to repeat the errors that it made then?

The Constitutional Convention consisted of more than political figures. It included people from throughout Scotland, elected representatives and representatives of trade unions, faith groups, ethnic minorities and the business community. Why did the SNP blunder then? There was a great chance for everyone in Scotland to work together to achieve devolution. [Interruption.]

The Presiding Officer:

One moment, Ms Fee. There is far too much talking in the chamber. Ms Grahame, will you please resume your seat? Do not turn your back on the chair.

Photo of Mary Fee Mary Fee Labour

That was what the Scottish people wanted, and they still do. Why did the SNP not listen to their wishes and needs? What has changed since then?

The claim of right is a pledge that we will give the people of Scotland a right to say how they are governed. It has taken the SNP 20 years to realise that. If it honestly believes that now, why does it not give Scotland the chance to vote on its future sooner rather than later?

This debate is part of a distraction from the substance of the separation debate. The claim of right has no legal status, although it is an important promise to people throughout Scotland that the SNP refused to sign. Now that the self-appointed future king of Scotland has published his consultation and referendum document and followed that yesterday with a wee trip up the Royal Mile to measure the drapes, can we please move on to the substance?

I hope that the First Minister and his party can answer the questions that must be addressed and then give the Scottish people the right to a say on Scotland’s future. If the SNP believes in the claim of right, why will it wait three years from when it won its majority to have the referendum? Is that because it fears that the Scottish people will reject its sole purpose as a political party? It is a political party with one reason for its existence: separation. Like Lord Wallace and many people throughout Scotland, I would take it more seriously if it had signed the claim of right in the late 1980s, which helped to bring it to the position that it is now in. The Scottish Government has a right to have a referendum on separation, but it should at all times take into account the right of the people to have their say on how they are governed.

Bring forward the vote and stop hiding behind the myth that the timing of the referendum was in the SNP manifesto. Give the Scottish people the right to say how they are governed, and tackle the real, important issues that affect Scotland.

Photo of Jim Eadie Jim Eadie Scottish National Party

The principle that it is for the people of Scotland to decide the form of government that is best suited to their needs is part of Scotland’s rich constitutional heritage, as eloquently expounded by Christine Grahame. The Deputy First Minister was right to trace the development of the principle of popular sovereignty back to the declaration of Arbroath.

David McLetchie talked about arbitrary despotic power. I am not sure whether he was talking about Edward I, the hammer of the Scots, or his political heroine, Margaret Thatcher. He also took issue with the claim of right of 1689. The distinguished academic historian and author, Owen Dudley Edwards, who is a constituent of mine, has stated,

“They were not democratic actions”— referring to the claim of right of 1689 and the church’s claim of right in 1842—

“but they were actions increasing momentum for democracy”.

I prefer Owen Dudley Edwards’s view of Scottish history to that of David McLetchie.

The idea of popular sovereignty was echoed in the original claim of right, which was passed by the Scottish Parliament in 1689. In England, James II was disposed of on the basis of what might be seen as a constitutional fiction, namely that he had abdicated by leaving the country for France. That was not the case in Scotland, as James VII was expressly removed from the throne by the Parliament of Scotland for being in breach of fundamental laws. It is against that background that the Lord President Cooper famously queried the unlimited sovereignty of Parliament as being

“a distinctively English principle which has no counterpart in Scottish constitutional law”,

as Christine Grahame said.

I pay tribute to the authors of the claim of right of 1988 for the care with which it was worded and the knowledge and appreciation of history that it displayed in acknowledging

“the sovereign right of the Scottish people to determine the form of Government best suited to their needs”.

Its authors clearly had a better grasp of Scottish history than did Tony Blair, who, as Chic Brodie reminded us, said:

“Sovereignty rests with me as an English MP.”

Placing limits on the powers of Government is not a Scottish idea. Increasingly, the notion of untrammelled parliamentary sovereignty is becoming as extinct, arcane and outmoded as such notions as the Crown in Parliament or the divine right of kings. Instead, over the centuries, citizens throughout the world have put limits on the powers of their rulers through written constitutions or international instruments that reflect a belief in fundamental rights. Similarly, the right of peoples to self-determination is an increasingly accepted doctrine of international law. The UN International Covenant on Civil and Political Rights opens with the simple notion:

“All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.”

For us on the SNP benches, constitutional change is the means to achieving that and unlocking it within our society.

Thus, the idea of popular rather than parliamentary sovereignty that we are debating this afternoon is old in origin, but modern in application. It is a significant piece of Scottish history, but it is part of the European and international mainstream. The sovereign will of the Scottish people is an idea that has been invoked at various crucial points in our history. Regardless of whether one supports or opposes independence, the forthcoming referendum is without doubt an historic moment and will be a defining moment for our country.

Photo of Malcolm Chisholm Malcolm Chisholm Labour

I agree with every word that the member has said, but is the logic of his position that there must be some check and limitation on the sovereignty of the Scottish Government when it comes to the referendum?

Photo of Jim Eadie Jim Eadie Scottish National Party

That point is adequately covered in the consultation document. If the member has a contrary view, he is welcome to engage in the consultation and set out constructive proposals that address the point that he has made.

The process in which we are engaged is not an arcane or abstract one, but a dynamic democratic process of constitutional change and renewal. It is a democratic process in which we will ask the people of Scotland, “Do you wish Scotland to be an independent country”? If the verdict of the Scottish people is yes, the Scottish Government will negotiate with the UK Government to bring about the transfer of sovereignty and powers from Westminster to the people of Scotland. We would be repatriating the Scottish constitution and fulfilling the Scottish constitutional tradition of which I and others have spoken this afternoon. We should welcome that as democrats, and it is in keeping with our traditions and heritage.

The Scottish Government has made it clear that it is willing to include an additional question on further substantial devolution if there is sufficient support for such a move. There are those in civic society, such as the voluntary sector, the churches and the trade unions, who wish to see a second question. I say to my friend and colleague Margo MacDonald that we should not dismiss that, but listen to what they have to say. That view appeared to be supported by the former Labour MP and UK minister Brian Wilson, who stated in The Scotsman on 11 January:

“If a way can be found to offer the Scottish electorate a more rounded choice, then why not?”

My question to the Labour benches is, why not? The consultation document offers a choice to the Scottish electorate on the future of our country based on complete and clear information following a full and informed debate. Let that debate commence and let the people decide.

Photo of Margo MacDonald Margo MacDonald Independent

I am proud to follow such a speech. I hoped that we would hear many such speeches in the Scottish Parliament. I do not mean to be patronising, but we have heard a few more this afternoon than we heard the last time that we debated the issue.

Mary Fee said that she would have thought more of the Scottish National Party if it had signed the original claim of right. Oh no she wouldn’t. [Laughter.] We are bedevilled by party politics when we come to talk about the national question. I will come to that later.

We can set one or two things straight this afternoon. It is only hours since the announcement on the consultation and already the misinformation, the lies, the hints, the nudges, the wink winks and the devious skills of spin doctors have been all over the airwaves and in the newspapers. Let us agree among ourselves to admit to a few basic truths.

Let us talk about the party politics for example. David McLetchie is a Tory. It is not his fault—I think he was born like that—but we should evaluate much of what he says about the Scottish constitutional question in light of that. This afternoon, he presented rather a questionable thesis when he discussed constitutionality. Jim Eadie referred to the United Nations charter, and we know perfectly well that the Scots can say that they want to be independent. No one can gainsay that, provided it is a fair test of opinion that brings about that result.

However, what the Scots cannot say while in partnership with other parts of the United Kingdom is, “We want to change this, that and the next thing,” without agreeing it first with its partners. That is what I was referring to when I suggested to the First Minister—a suggestion that I hope he took kindly—that he should ditch the second question idea because he can deliver on the first question if he carries the argument, but he cannot deliver on the second without the agreement of people over whom we have no influence whatever, if they do not want us to have influence. That is where I take issue with Jim Eadie. The intention of trying to include the people of these islands in our march forward is the correct one, but I fear that it cannot be done on the one ballot paper.

An aspect of politics in Scotland that confuses the pure debate on our constitutional future is the issue of identity. We are still at it. I am a patriotic Scot but I am not a nationalist. I wonder whether a man from Mars could tell the difference. I went to Puerto Rico once. There were three groups in Puerto Rican politics: the people who were for commonwealth, which is what we would equate to devolution; the full-state lobby, which wanted to be another state of the union; and the people who were for independence. Do you know something? I could not tell the difference and nor could anyone else. They all backed Puerto Rico, but party politics was screwing things up for them.

I remember that sort of thing when I hear Neil Findlay speak, because he knows, as I know, that it is no use having the ideals of alleviating poverty and creating a fair society if we do not have the delivery mechanism to do that. If we had that delivery mechanism we would not even need to pretend that the United Kingdom is perfect in what it has achieved—that is what is on offer as an alternative to the sovereignty that the SNP proposes in its document. If the UK had got the delivery mechanism right, Johann Lamont’s constituency would not have the social indices that it has, which are probably the worst set in the whole of the UK. If that is partnership, I want none of it.

Photo of Neil Findlay Neil Findlay Labour

My issue with what the member is arguing is that simplistic arguments such as, “It would all be better if we were independent,” take out of the whole equation arguments about class, which is the bigger issue in the debate about our future.

Photo of Margo MacDonald Margo MacDonald Independent

I do not maintain that any or all of the parties in this Parliament have all the wisdom required to do some of the things that Neil Findlay and I would like to be done. All that I can say is that the current system has patently failed to achieve anything and that we can do no worse as an independent country. That is a negative way of putting the argument—Alex Salmond will not be pleased.

There are very positive reasons for continuing to argue this case. For a start, we have let our fellow Scots wallow in second-rate debate. Some of the stuff that I heard on radio this morning would have made your blood curdle: “Oh, we cudnae do it. I think we’re too wee. We haven’t got enough money”. This is not about money; it is about having confidence, determination and a sense of fairness and being honest about whether we could not do better than the current delivery mechanism.

Photo of Richard Baker Richard Baker Labour

The fundamental principle of the sovereignty of the people of Scotland set out in the claim of right was put forward by the Scottish Constitutional Convention in the campaign for this Parliament, and Scottish Labour representatives support it today, as so many of our party did then. Given that the SNP did not sign up to that document in 1989, it ill behoves any SNP MSP to try and lecture this side of the chamber on the claim and the important principles that it stands for. It is far better that we celebrate the principles of sovereignty and democracy that the claim sets out and to which we can all adhere.

Not having signed the claim of right in 1989, the SNP is not in a strong position to lever that document into the Parliament’s discussions on plans for the referendum. This side of the chamber has no difficulty in applying that statement and the principle of the sovereignty of the people of Scotland to our approach to the debate on Scotland’s constitutional future. Fundamentally, it is about empowering the people of Scotland to make their own decision about the future of this country. We believe that we establish the sovereignty of and empower the people by ensuring that they can take part in a fair and legal democratic process that delivers clarity on the key questions about our country’s future. The choice is as stark as Margo MacDonald has put it and those principles should be discussed and debated. Nevertheless, we feel that our alternative vision is superior to that put forward by Margo MacDonald.

We also believe that we establish the sovereignty of the people and empower them by holding the referendum at a time and in a way that does not suit the ends of one political party or one view, but is in the interests of all the people of this country; by giving the people of Scotland a clear question on the future of this country; and by ensuring that alternative visions of the future are made clear to them.

That is where the devo max or devo plus proposals fall down with regard to their inclusion in the referendum. It is not because such ideas are not worthy of debate—they are. It is not because we believe that this Parliament should have no further powers—indeed, we have just endorsed extra powers. It is because there is no clarity on the proposals. We believe that voting on an undefined or ill-defined constitutional future does not serve democracy or the people of Scotland. We welcome debate about the Parliament’s future powers but we believe that that, too, is best served by a different process.

There has been a lot of talk about who has a mandate to be involved in discussions on the referendum’s format. Although mandate can be a more difficult concept to pin down than sovereignty, we have nevertheless accepted the Scottish Government’s mandate to hold in this Parliament a referendum on taking Scotland out of the United Kingdom. I do not accept that the SNP had a specific mandate on the timing, but we have done nothing other than acknowledge that the mandate to hold the referendum in this parliamentary session is clear. However, although the SNP might not like it, the fact is that Scots have given a mandate on Scotland’s political future not only to the SNP, but to other parties. Scots voted in great numbers in the Westminster elections for representatives who have a mandate to be involved in the issue. The SNP does not like that, but that is the current constitutional settlement.

I have no problem agreeing that the form of the referendum should be driven by debate in Scotland, but that should meaningfully involve all those who have been elected by the people of Scotland to represent them. The problem with the Scottish Government is that it too often seems to confuse its party and Government with the people of Scotland. No one can deny that the SNP achieved a significant electoral victory last May, but we are not a one-party state, and let us hope that we never are. The views of the people of Scotland are diverse and are represented by a range of political opinion. The Scottish Government has implied too often that the process should principally be a matter for it and for its majority in the Parliament, but that will not wash. Ministers should be aware that a Government that has a majority in the Parliament should work harder to include the views of others and should not use that position to discount and exclude others.

I hope that we are moving away from that approach and that there is progress. Dialogue between the Scottish and Westminster Governments appears to have begun, which is welcome, but we also need meaningful dialogue between the parties in the Parliament and with civic Scotland to complement the consultation process. That is of huge importance.

Photo of Margo MacDonald Margo MacDonald Independent

I take what the member says seriously, but I wonder whether he can find it in his approach to sit down with members from across the Parliament to discuss, for example, whether we should even attempt to take part in a joint defence policy. If we do not think that we should do that, that implies something constitutionally.

Photo of Richard Baker Richard Baker Labour

I await with expectation the white paper that will come with the bill on the referendum, which will allow us to debate all those issues in the Parliament. I am happy to debate the issues more widely, and we look forward to the talks that the First Minister said he wished to have. I am confident that Labour will take part seriously in those talks. That approach is an obvious way to ensure that the range of political opinion is included. It is the most effective way to ensure that progress towards a fair referendum is driven by discussion in Scotland.

The First Minister’s comments on round-table talks are welcome, because we believe that, if we seek to forge a consensus on how the referendum is held, we can aspire to excellence in that democratic process. That is how we will empower the people of Scotland to make that crucial decision and how we will respect their sovereignty to choose their future.

Photo of Murdo Fraser Murdo Fraser Conservative

We have learned some useful things during the debate. I learned that I agreed with much of what Margo MacDonald said. Those of us in the Opposition parties learned that we should use the word “separation” as much as possible, because of the pantomime reaction that it draws from SNP members—I have rewritten my speech accordingly.

Photo of Murdo Fraser Murdo Fraser Conservative

No—not at the moment. There will be plenty of opportunity for me to mention that word later, Mr Hepburn.

We also learned that Christine Grahame has studied constitutional law. I enjoyed Mrs Grahame’s tutorial on sovereignty and the divine right of kings. She was right that Henry VIII of England developed the concept. However, one of the ironies of history is that it was the Scottish Stuart kings, when they came to the English throne, who embraced it with great enthusiasm. James VI wrote extensively on the divine right of kings. His rather foolish son, Charles I, lacked his father’s guile and tact, but nevertheless continued with his political views, which led directly to the Scottish revolution of 1637, the signature of the national covenant, the bishops wars and, in due course, the English civil war. It was not until 1689 that the glorious revolution and the original claim of right led to the eradication of the concept from the British constitution.

Photo of Murdo Fraser Murdo Fraser Conservative

I will happily give way to receive a tutorial from Mrs Grahame.

Photo of Christine Grahame Christine Grahame Scottish National Party

I thank the member for developing the historical trail, but what he says does not impact on the constitutional position, which is that the people of Scotland remained sovereign through their Parliament, and that the English Parliament was sovereign as it came through England’s historical roots. That does not change because of what the member said.

Photo of Murdo Fraser Murdo Fraser Conservative

Mrs Grahame is drawing a fine distinction. I will develop my argument on the claim of right and perhaps we will end up agreeing.

I am pleased that we are having the debate. The First Minister promised in October that he would bring a debate on the claim of right to the chamber in the next month. Although the debate is three months later than it should have been, I am glad that the SNP has got round to fulfilling that promise. However, our party will not be affirming our commitment to the claim of right.

As many members have said, the SNP could not sign up to the 1989 claim of right. It was right to take that stance at that point, and it is to be regretted that it has changed its mind because, as my colleague David McLetchie pointed out, there is a fundamental flaw in the claim of right.

Photo of Murdo Fraser Murdo Fraser Conservative

Not at the moment. I want to develop my argument.

It is generally understood that the legal reality of the position in the United Kingdom is that sovereignty rests with the Crown in Parliament. However, there is an alternative, popular sovereignty of the Scottish people to exercise national self-determination, and that is recognised in the political reality. Therefore, if the people vote for separation in a referendum, that right will be respected. We come to the fundamental issue: the right of national self-determination relates only to the right to declare independence—or separation—from the rest of the UK and not the right, mentioned in the claim of right, to

“determine the form of Government best suited to their needs”.

That is because the United Kingdom is founded by the treaty of union, a treaty between Scotland and the other contracting party. As David McLetchie said, you do not need to be a lawyer to realise that one party to a treaty or contract cannot unilaterally rewrite its terms.

Therefore, if the Scottish people decide on a form of self-government short of separation—however they express that desire—it can be achieved only by agreement with the other contracting parties: the peoples of England, Wales and Northern Ireland as represented by those whom they have elected to Parliament. It is a complete nonsense to suggest that there is an absolute right for the Scottish people to unilaterally rewrite the treaty of union and to redefine the relationship with the rest of the UK, as Margo MacDonald fairly stated.

If members are having difficulty grasping that concept, I will draw a parallel with our membership of the European Union. If we were to have a referendum on EU membership, it would be open to the people of the United Kingdom to vote to pull out altogether. However, we could not vote unilaterally to rewrite our relationship with Europe. We may not like the working time directive, the common agricultural policy or the common fisheries policy, but the UK Government cannot decide unilaterally that it will simply stop adhering to those aspects of EU policy, even if it wants to, because the other contracting parties—the other countries within the EU—would simply not put up with it.

Photo of Margo MacDonald Margo MacDonald Independent

There is a difference between the sovereignty of the people being expressed and a treaty having been signed. In the case of the EU, treaties were signed, unfortunately. No such treaty has ever been signed between Scotland and England in the same manner.

Photo of Murdo Fraser Murdo Fraser Conservative

Of course, the treaty of union was precisely that. The Scots Parliament of the time, however imperfectly it represented the view of the people, contracted with the Parliament of England and created a new Parliament. What we did then was to share sovereignty, exactly as we did when Britain joined the European Economic Community. That is what we agreed to do, but we cannot unilaterally renegotiate the terms.

The claim of right is based on an entirely false prospectus. Suggestions that there should be a question on so-called devo max represent an equal nonsense, because it could not be delivered. The Conservative party was right to have nothing to do with the claim of right in 1989 and, unlike some others in this Parliament, we remain consistent in our opinion.

Photo of Hugh Henry Hugh Henry Labour

It has been a somewhat bizarre debate because, at times—despite what Margo MacDonald said about some of the speeches—it has felt as though I was participating in fringe meetings at an SNP conference.

There has been plenty rhetoric, emotion, sophistry and semantics but little about some of the facts and detail that we need to resolve. Had the debate been constructed around the terms of reference that Margo MacDonald articulated, we would have spent our time much more productively and fruitfully, because there are significant issues that need to be resolved.

Notwithstanding the specific detail that Murdo Fraser and David McLetchie provided on the legal issues, Margo MacDonald and others—including SNP members—have outlined the fact that, irrespective of the legal niceties, if people in Scotland want to determine their future in a different way, they have the right to do so. If they do so, we will need to engage in a detailed and protracted process that will involve negotiation.

Whatever happens, people in Scotland need to know what they are voting on. They need to know whether they are voting for Scotland to separate from the United Kingdom and set up completely on our own—

Photo of Hugh Henry Hugh Henry Labour

No, thanks.

Alternatively, people in Scotland need to know whether we are moving towards a new form of devolution. As Malcolm Chisholm eloquently said, we cannot merge the two issues.

We need to decide on our future. If Scotland wants to move to independence and to separate from the United Kingdom, that is fine—let us do that, so that I can get on with the rest of my life. On the other hand, if people in Scotland want to stay part of the United Kingdom and have a different form of devolution, we have the right to do that. Let us get the independence and separation question out of the road.

In a sense, the motion is farcical. As Neil Findlay and others said, it asks some parties—the Liberal Democrats and the Labour Party—but not the Conservatives or the SNP to reassert our commitment to the claim of right, as Alex Salmond said. As parties, we cannot reassert that commitment. The SNP cannot reassert the commitment, because the SNP never made it in the first place.

It is cynical and does debate no good in the Parliament to consider only part of the claim of right. The claim of right said:

“We further declare and pledge that our actions and deliberations shall be directed to the following ends:

To agree a scheme for an Assembly or Parliament for Scotland”.

When Labour came to power, we delivered that. Another purpose was

“To mobilise Scottish opinion and ensure the approval of the Scottish people for that scheme”.

Labour delivered that with a referendum. Another purpose was—

Photo of Hugh Henry Hugh Henry Labour

Wait until I have finished my point.

Another purpose was:

“To assert the right of the Scottish people to secure the implementation of that scheme.”

Labour facilitated that and delivered not only a referendum but the Parliament.

Photo of Hugh Henry Hugh Henry Labour

No—let me finish the points that I want to make.

An equally important part of the Scottish Constitutional Convention that we do not refer to when we talk about the convention is that it said, on securing the legislation, that

“In order to ensure successive Westminster Parliaments do not attempt to dismantle a Scottish Parliament the Convention expects the Westminster Parliament to move a special Declaration before passing the legislation creating the Scottish Parliament.”

The convention said that Westminster should not have the right to remove what was put in place. If the convention expected Westminster to give that commitment, why should we complain when people such as Jim Wallace attempt to recognise that?

Photo of Hugh Henry Hugh Henry Labour

Jim Wallace is attempting not to act as a governor-general but to deliver what he has campaigned for all his life. Westminster has a role in the process as outlined by the Scottish Constitutional Convention.

Photo of Hugh Henry Hugh Henry Labour

We have heard a number of things today. We heard about motions being “charged with historical resonance”, but there is historical resonance from different political perspectives. In some cases, we heard history being rewritten and misquoted and the law being twisted.

Photo of Christine Grahame Christine Grahame Scottish National Party

I thought that I gave a fairly objective analysis of the constitutional position in Scotland in relation to the sovereignty of the people as opposed to the sovereignty of Westminster, how that came about historically and how it is still extant. There was no ranting and nothing that was not objective analysis. Does Hugh Henry accept the point in the motion that we are dealing with the sovereignty of the people, with which Westminster cannot interfere?

Photo of Hugh Henry Hugh Henry Labour

In the motion, we are dealing with a claim of right to which the Labour Party signed up and the SNP did not. We are dealing only with a partial statement of that claim of right.

A number of comments have been made to which I do not have time to refer. Linda Fabiani said that this Parliament, not Westminster, speaks for Scotland. On many things, this Parliament and not Westminster speaks for Scotland, but there are many other matters on which Westminster speaks for Scotland, because it remains our Parliament, not their Parliament. That point should never be forgotten.

There are words in the constitutional convention document on which the SNP Government should reflect. I will finish with its words:

“What this process has proved is that constructive consensus is achievable, even among those steeped in the ritual confrontations of British politics. That lesson is immensely encouraging, not just for the project of designing a Scottish Parliament, but for the much more important question of how the Parliament will work once it is in place. We see the consensus that this report represents as a beacon of hope for a new and better politics in a Scotland running its own affairs. We have been struck by the way argument has generated understanding and respect, rather than acrimony. Every decision has been reached by agreement. None has been taken by majority vote. When the prize is big enough, purpose can overcome obstinacy.”

Think about it.

Photo of Michael Russell Michael Russell Scottish National Party

I was struck this morning on reading the coverage of yesterday’s events by an article by Rebecca McQuillan in The Herald describing the events in Edinburgh castle. She described a young Catalan television journalist called Carles Costa. She says of him:

“Bundled up in a heavy coat against a Scottish January, and regretting not having eaten lunch before he came, he explained what made the greatest impression on him: that in the UK, it was possible to debate independence in polite terms.”

I fear that Señor Costa might be a little disappointed this afternoon. There is some distance still to go before we are having the type of debate that we should have in Scotland on those issues.

I will deal mostly with the attitude of the Labour Party this afternoon, but I will touch on two other matters first. First, the attitude of the Tories is absolutely baffling. Both speakers appeared to be conducting a seminar on constitutional theory. They were actually echoing—in a very strange way—words that the Secretary of State for Scotland, Arthur Woodburn, pronounced in 1949 in the House of Commons. On the question of whether Scotland’s people would wish to make their own decisions, he said:

“the answer, undoubtedly, would be ‘Yes.’”

However, he went on to say:

“Such questions are quite unrealistic and have no reference to the practical application of such a sentiment. The answers which they automatically provoke are quite valueless.”—[Official Report, House of Commons, 16 November 1949; Vol 469, c 2094.]

David McLetchie and Murdo Fraser never told us whether they believed in the sovereign right of the Scottish people to do anything. They indulged in sophistry all afternoon. That shows why the Tories are utterly irrelevant to this debate.

Photo of David McLetchie David McLetchie Conservative

I think that Mr Fraser and I both made it perfectly clear that the people are sovereign through elected representatives in Parliament, and we said that people have a sovereign right to be an independent nation if they vote for that.

However, we also said that one cannot unilaterally change the rules of a club if one wants to stay in a club. Anybody with an iota of common sense knows that that is true, but that is clearly lacking from Mr Russell.

Photo of Michael Russell Michael Russell Scottish National Party

That is a clearer exposition than the one that we heard two hours ago, but it is still irrelevant to this debate. We are asking people to sign on to a simple statement. We will see when they vote whether or not they believe in the sovereignty of the Scottish people.

I will not spend any time on the position of the Liberals, because I do not understand that either. They are a bit like Lord Wallace on television last night, who—as some members will have seen—was not waving, but drowning in this debate. They have little relevance, too.

The problem with the Labour Party that I have identified this afternoon is a serious one. I think that Theresa May once described the Tory party as becoming the “nasty party” in politics, and—unfortunately—we began to see that this afternoon. Mr Findlay’s speech was utterly remarkable. Two things were running through my mind while I was listening to it, the first of which was the endless insistence on something that the Labour Party tried to insist on in the 1950s, 1960s and early 1970s: that the constitutional debate had nothing to do with social progress, that it was a distraction and that we needed to get on with social progress. Well, that failed in the 1950s, the 1960s and the 1970s, and it will fail again.

Also going through my mind was an echo of something that I used to hear in the first session of the Parliament. When Neil Findlay intervened, I suddenly realised what it was. We were hearing an echo of Tommy Sheridan talking about class war. I knew and was not a great supporter of Tommy Sheridan; Mr FindIay is no Tommy Sheridan.

Labour’s argument was entirely based on history. It was entirely based on what happened 23 years ago, in late January and early February 1989. At the beginning of the debate I made it clear to Patricia Ferguson that if she thought that the SNP had made a mistake at the time she should be glad that we lodged the motion for today’s debate, because that shows that we are overcoming that historical mistake.

However, we can never apologise to the Labour Party. Labour members did not want to hear a word of it; they wanted to hear their own voices going on and on about what happened 23 years ago, which nobody can remember. I was there and I am having huge difficulty remembering exactly what happened. Nobody is interested in what the SNP did or did not do.

The historical record needs to be set right, in a small way. All that we heard about the SNP’s failure to do this or that is set a little at naught by Canon Kenyon Wright in his book, “The People Say Yes: The Making of Scotland’s Parliament”, in which he wrote:

“From the SNP’s own point of view it would probably have been wiser never to have been involved at all. From the Convention’s point of view however it is good that they were there, even if only for some of the preparatory stages. Their presence and their demands propelled the Labour Party and other partners into concessions which they might not otherwise have been prepared to offer or accept. The whole idea of sovereignty, and of real progress by consensus, were matters which the Churches had certainly proposed from the start in the Convention, but which the SNP’s brief flirtation reinforced.”

The SNP’s influence in the convention was there. As I made clear several times, the SNP’s lack of involvement had its reasons then but is utterly irrelevant now.

Let us look forward and talk about what we have to achieve. According to Kenyon Wright, at the first meeting of the convention in 1989:

Donald Dewar called for ‘independence for Scotland, independence of action, the reality of power, the control of our own affairs, our relations and continuing links with the rest of the United Kingdom.’”

That is a good description of the constitutional chapter that we are moving through, which needs to be renewed in different terms. For the SNP, those terms are independence itself, but we acknowledge that some do not support that. In 2012, as in 1989, there is support among the people and civic society in Scotland for full devolution within the United Kingdom. That, in their view, is the form of Government that is best suited to Scotland. I disagree, but I am upset that Malcolm Chisholm has moved from his position of endorsing the possibility of wider choice. Let us find out from the people of Scotland.

Photo of Michael Russell Michael Russell Scottish National Party

Can I please make progress? I am close to the end of my speech.

That is why we have asked the people of Scotland to take part in discussions during the next weeks and months. We want to ensure that they have the opportunity to have their voices heard on the matter.

The history of the claim of right is not the question today. The question today is not about individual politicians and parties. It is not about high office. It is not about the mace and the rituals of this Parliament. The question is simple: it is whether power rests with the people. If members do not trust the people, they will vote the motion down. If they believe that the people of Scotland are sovereign and that we are looking forward with confidence to our future and trying to come together to resolve our differences to secure a better Scotland, they should vote for the motion. I ask the Labour Party to stop being the nasty party. I ask it to be the positive party and to join us and prove the irrelevance that we have over here—I regret that even now I see that the leader of the Labour Party is refusing to do that. That would be a tragedy for Scotland.